Published 4:00 am, Monday, January 22, 2007

California's sentencing law violates the right to a jury trial because it allows judges to add years to a prison term based on their own fact-finding, the U.S. Supreme Court ruled Monday in a case that will force the state to re-examine basic questions of crime and punishment.

The 6-3 ruling could take four years off the 16-year sentence of a convicted child molester from Contra Costa County who challenged the law, and it could shorten the terms of several thousand other prisoners who were given maximum sentences by judges.

It also requires the state to change its sentencing law while it struggles to contain the soaring costs of an overcrowded prison system.

"This is an opportunity to take an in-depth look at how things are functioning," said new Attorney General Jerry Brown, who as governor signed the 1977 law that the court struck down. "In the meantime, there will be a significant number of cases that will have to be retried."

The 1977 law was designed to promote uniform sentences -- equal times for equal crimes -- by eliminating parole boards' authority to set terms for most prisoners. Instead, the law gave judges the power to choose among three sentences for each crime.

The case before the Supreme Court was brought by John Cunningham of San Pablo, a former Richmond police officer who was convicted of sexually abusing his son from December 1999 to October 2000. The boy, who turned 10 during that period, said his father had molested him two or three times a week, sometimes accompanied by threats or beatings.

Cunningham insisted he was innocent, saying his son had a history of lying. His convictions are final, however, and the ruling concerned only his sentence.

Under California law, Cunningham's crime -- continuous sexual abuse of a child -- was punishable by six, 12 or 16 years in prison. The law required the judge to choose the middle term unless facts about the defendant or the crime justified the longer or shorter term. Those facts were determined by the judge after the jury conviction.

The judge in Cunningham's case imposed the maximum sentence after finding that the boy had been particularly vulnerable and that Cunningham had committed the crime with great violence and posed a danger to society. None of those issues had been submitted to the jury.

The pre-1977 law set a much broader range of sentences -- one to 15 years, for example, or 10 years to life -- and let the parole board decide when a prisoner was ready for release. The law was attacked from both the political right, which said board members were being duped into premature paroles, and the left, which said sentences were prolonged arbitrarily or for political reasons.

The 1977 law has made sentences more predictable. But the state prison population, then just over 20,000, now totals 172,000, while the crime rate has changed little.

Monday's ruling followed Supreme Court decisions in 2004 and 2005 that overturned sentencing laws in other states as well as the federal sentencing rules. In those cases, the court found that the law improperly subjected a defendant to a longer term based on a judge's assessment of the facts.

The California law, "by placing sentence-elevating fact-finding within the judge's province, violates a defendant's right to trial by jury," Justice Ruth Bader Ginsburg said in the majority opinion, which rejected a 2005 state Supreme Court ruling upholding the law.

Although a jury must find a defendant guilty beyond a reasonable doubt, Ginsburg noted, a California judge can increase the standard sentence based on facts that the judge finds more likely than not to be true.

The court did not order specific changes in the law, saying that was up to state legislators. Defense lawyers generally favor the option that many states adopted after court rulings: allowing a jury to decide all facts affecting sentences.

The uniformity promoted by the 1977 law "can still be achieved. You just have to add one procedural protection for defendants," said Jeffrey Fisher, a Stanford law professor who filed arguments with the court on behalf of the National Association of Criminal Defense Lawyers.

But David LaBahn, executive director of the California District Attorneys Association, said prosecutors prefer an approach that would eliminate the current requirement that judges in most cases choose the middle of the three sentences. Judges would then have free rein to select any of the three options without invading the domain of the jury, whose verdict would have made all three choices available, he said.

Fisher countered that such a system would make sentencing less predictable.

Brown said he would like to increase the authority of the parole board, and perhaps judges, to tailor prison terms.

"We need greater individualization of sentences because some inmates require more punishment than others," the attorney general said.

Romero said Monday that the ruling made the creation of an independent commission more urgent. Schwarzenegger issued a statement saying he would "work to ensure that this decision will not be a threat to public safety."

About 15 percent of the felons sentenced to prison in California receive longer terms, according to state statistics. But only a small percentage of those -- which no one could estimate Monday -- will be affected by the ruling. Most state inmates were sentenced under plea agreements under which they agreed to the prison term and waived the right to appeal even if the sentencing law were later overturned.

The remainder can seek resentencing to middle terms. They include Cunningham, whose term would be reduced to 12 years.

Those reductions would not be automatic, however. In Cunningham's case, Deputy District Attorney John Cope of Contra Costa County said he would ask the sentencing judge to convene a new jury to find facts that would justify the 16-year term.

But Cunningham's lawyer, Peter Gold, said such a hearing would amount to retrying the case. LaBahn of the district attorneys association said such hearings might violate the constitutional ban on double jeopardy.

The case is Cunningham vs. California, 05-6551.

How they voted

How the U.S. Supreme Court voted Monday in a 6-3 ruling striking down California's sentencing law: